Labor law scholars have long recognized that the National Labor Relations Act no longer deters employers from committing unfair labor practices, especially during the crucial time periods of union organizing drives and first contract negotiations. As a result, the Act's promise of "full freedom of association" has become increasingly illusory. Recent scholarship suggests that discharges based on union activity - the classic employer unfair labor practice - are now commonplace, in large part because employers committed to union avoidance consider them merely a cost of doing business. The remedies available to the National Labor Relations Board to redress labor law violations simply are not burdensome enough to deter unlawful conduct. Scholars and policymakers have recognized this fact and made various proposals for reform.
But scholars have not adequately examined the reasoning underlying the strict limitations on the Board's remedial power. The statute itself appears to supply broad discretion, stating plainly that the Board is empowered to direct offenders to "take such affirmative action ... as will effectuate the policies of this Act." Shortly after the law was enacted, however, the U.S. Supreme Court severely constrained that discretion, holding in Republic Steel Corp. v. NLRB that Board remedies may not be "punitive" in nature and that deterrence is not a permissible rationale on which to premise a particular remedy. Since that time, courts have used the Republic Steel rule to cut back on the Board's remedial authority. But a comprehensive examination of the basis for, and application of, that rule remains missing in the academic literature.
In this Comment, the author provides that examination by surveying the application of Republic Steel to various remedies attempted by the Board and by analyzing whether the rule has any basis in the NLRA. The Comment reveals that the rule never has been applied in a coherent manner and that it lacks support in the legislative history and the statutory language. The author argues that Republic Steel has resulted in confusion and inconsistency, and has played no small part in the Board's inability to deter unfair labor practices effectively. Furthermore, the author maintains that Congress intended the Board to exercise broad discretion to affirmatively deter violations of the Act. Ultimately, however, the author concludes that doctrinal change will not come about without action by Congress.